Lucas v. Commercial Union Ins. Co.

• Decision Date: 17 April 1967
• Docket Number: No. 7034,7034
• Citation: 198 So.2d 560
• Parties: Charles Murray LUCAS v. COMMERCIAL UNION INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 560

198 So.2d 560

Charles Murray LUCAS v. COMMERCIAL UNION INSURANCE COMPANY et al.

No. 7034.

Court of Appeal of Louisiana, First Circuit.

April 17, 1967.

Ben E. Atkins, Wilbur D. Atkins, Jr., Baton Rouge, for appellant.

James E. Moore, of Franklin & Keogh, Baton Rouge, for appellees.

Before LANDRY, ELLIS and BAILES, JJ.

LANDRY, Judge.

Plaintiff has taken this appeal from the judgment of the trial court rejecting and dismissing his action ex delicto against defendants, Kansas City Southern Railway Company (Kansas City), Commercial Union Insurance Company (Commercial), and Coy Dexter Booth (Booth), in solido, on said defendants' exceptions of prescription of one year based on the face of the pleadings which show plaintiff's action was instituted more than one year subsequent to the date of the alleged wrongful act. We find that the trial court improperly sustained defendants' exceptions on the face of the pleadings and that this matter must be remanded to the lower court for trial of defendants' exceptions on the merits.

Appellant's suit was filed June 2, 1966, praying for damages for personal injuries purportedly sustained in an automobile accident which assertedly occurred at approximately 4:30 P.M., May 28, 1965, on U.S. Highway 190 in Pointe Coupee Parish. For a cause of action plaintiff alleges he was operating a 1962 model pickup truck which was struck by a 1964 Ford Station Wagon owned by defendant Kansas City, insured by respondent, Commercial, and being driven by defendant Booth, the employee of Kansas City acting within the course and during the scope of his said employment.

Plaintiff's initial petition asserts he was unaware of having received any injuries in the accident until June 2, 1965, on which date he contacted a physician for a routine check up and was then advised he had sustained a right thoracic outlet syndrome resulting from neck and muscle injuries caused by the accident.

Defendants excepted to plaintiff's petition as being prescribed on its face whereupon petitioner supplemented his complaint as follows:

'10.

Upon going to a physician for a routine check up on June 2, 1965, plaintiff discovered that he had been caused to suffer a sore tender neck, numbness in the right thumb and slight stiffness in the lumbosacral area, as a result of the accident. These symptoms lasted for about a month. Soon after this pain had disappeared, petition suffered severe thoracic pains, and went to see Dr. Richard W. Ernst, cardiovascular and thoracic surgeon in Fort Worth, Texas, and there underwent an operation for the relief of a right thoracic outlet syndrome. Plaintiff had no idea that he had any thoracic injury until three or four months after the accident. According to the medical reports of Dr. Ernst, the right thoracic outlet syndrome was proximately caused by the original injuries sustained as a result of the May 28, 1965 accident, and that, as a matter of fact, a thoracic outlet syndrome can not be brought on as such, by a car accident resulting in a neck or shoulder injury, but that such syndrome was brought about as a result of prolonged convalescence and diminished exercise of the muscles in the shoulder and the neck. This is especially true in the case of such persons as the plaintiff, who was quite athletic and muscular prior to the accident, and then subject to inactivity following the injury.'

The exceptions of prescription were tried by the court below on the face of the pleadings as thus constituted and judgment rendered in favor of defendants sustaining said exceptions.

In contending his action has not prescribed appellant relies upon the provisions of LSA-C.C. Articles 3536 and 3537, the pertinent portions of which read as follows:

'Art. 3536. The following actions are also prescribed by one year:

That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.

'Art. 3537. The prescription mentioned in the preceding article runs:

With respect to the merchandise injured or not delivered from the day of the arrival of the vessel, or that on which she ought to have arrived.

And the in other cases from that on which the injurious words, disturbance or damage were sustained.

And where and, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof.'

The substance of appellant's argument is that the prescriptive period of one year provided by the foregoing codal authority commences, as regards actions for personal injuries, on the day the injury is sustained. On authority of Jones v. Texas & P. Ry. Co., 125 La. 542, 51 So. 582, appellant argues the word 'sustained' as used in the applicable codal provision hereinabove cited, means the day on which the damage complained of is discovered, which day may be subsequent to the day of the wrongful act which gives rise to the damages. Appellant also cites and relies upon Perrin v. Rodriguez, et al., La.App., 153 So. 555, and McLaughlin v. Western Union Telegraph Company, 5 Cir., 17 F.2d 574, in support of the contention that prescription does not begin to run on an action in tort until the injured party becomes aware of his injuries.

Defendants maintain, however, the prescription provided by the applicable codal articles runs from the date on which the damage is inflicted, which means the date of the accident, citing as authority therefor Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269, and Brown v. Crown Zellerbach Co., La.App., 112 So.2d 150. In addition defendants argue prescription commences to run on an action of this nature when there exists circumstances sufficient to put the injured party on notice enough to excite his attention and put him on inquiry which would reasonably lead to knowledge of his claim, as held in Schouest v. Texas Crude Oil Co., La.App., 141 So.2d 155. On this latter premise defendants maintain plaintiff's allegations in effect show that he was aware of his injuries from the date of the accident in question and that plaintiff did not need to consult a physician to be told that his neck was hurting or that he experienced other pain or discomfort.

The issue thus presented is one that has long perplexed the courts and has led to the adoption of the general rule that an action ex delicto prescribed one year from the date the injury is 'sustained', that is, the date the damage is 'inflicted', which in most instances is the date of the wrongful act. Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269.

It is now well settled that the foregoing general rule is subject to certain equally well established exceptions. In cases where reparations are sought for trespass upon or damage to real property, the action for recovery may be instituted within one year from the date the injured party acquires knowledge of the damage instead of one year from the omission of the tortuous act. Young v. International Paper Co., 179 La. 803, 155 So. 231. An...